Justice Clarence Thomas can still redeem himself. One of his predecessors, former Supreme Court Justice Abe Fortas, showed the way. Caught in the midst of a financial scandal, Fortas did the decent thing and resigned rather than continue to embarrass the court and himself. This is one precedent that Thomas, a notorious iconoclast, should follow.
Thomas’s dubious financial entanglements have been a source of embarrassment for many years. Indeed, even his unsavory relationship with politically active real-estate billionaire Harlan Crow, which figured so prominently in the recent reports of luxury trips around the world on Crow’s yachts and jets was the subject of an expose a dozen years ago. Washington Monthly magazine published a recap of what was known about Thomas’s hobnobbing with new-found friends who cultivated him after his accession to the high court.
In an era when the Supreme Court is suffering from an unprecedented lack of trust, it is not surprising that these latest revelations have sparked calls for Thomas to be impeached, a response that even its most prominent exponent, Rep. Alexandria Ocasio-Cortez (D-N.Y.), concedes is politically unlikely. In a House of Representatives controlled by far-right rabble rousers, Thomas is seen as a hero who is willing to stand alone when necessary to oppose what they see as the slightest hint of “socialism” in the guise of government regulation.
Similarly, calls for long-overdue enactment of a binding, enforceable code of ethics for members of the Supreme Court, while well founded, are equally unlikely, since the court and its Republican supporters have been intransigent in leaving the justices to decide for themselves whether to live up to any standards of ethical behavior. Moreover, any new prescriptions can operate only prospectively and will have no bearing on Thomas’s apparent decades of non-disclosure.
But there is a parallel for cleansing this stain on the court — Abe Fortas’s resignation in 1969.
Because Fortas served on the court for only four years, his name is little known today, especially outside Washington legal circles. The salient facts bear recalling.
Fortas was a brilliant lawyer who, like Thomas, came to Washington from Yale Law School. As a young man, Fortas served as a senior official in the FDR administration and then helped found one of Washington’s great law firms, originally known as Arnold, Fortas & Porter. He befriended Lyndon B. Johnson early in Johnson’s rise up the political ladder. In 1965, President Johnson rewarded his political loyalty with appointment to the court.
In 1968, Johnson nominated Fortas to succeed Earl Warren as chief justice. That is when the wheels began to come off the bus. Investigation revealed that Fortas was paid a stipend of $15,000 to do some adjunct teaching. Unlike the gigs that current and more recent justices have accepted to offer summer seminars in exotic locations in Europe or Asia, Fortas was simply teaching a few blocks away at American University in Washington. But funding for the fee was organized by Fortas’s old firm and its clients, many of whom had cases before the court.
Although these disclosures induced Fortas to ask that his nomination as chief justice be withdrawn, he sought to remain on the court. The final straw came months later, in 1969, when it emerged that he had taken a $20,000 retainer from the family foundation of an indicted securities swindler, Lewis Wolfson. Like Thomas’s receipt of hundreds of thousands of dollars worth of free vacations, Fortas’s acceptance of a retainer was not technically illegal. Nevertheless, it stank.
Chief Justice Warren and Fortas’s friend Justice Hugo Black urged Fortas to resign, to salvage some of his reputation and that of his wife, also a prominent, active lawyer. Reluctantly, with his reputation in tatters, he stepped down. After resigning, he formed a new law firm and resumed practicing law as an elder statesman.
I followed these developments closely, because I was serving as a young assistant in the Solicitor General’s office and had argued my first cases a few months earlier in front of the court that included Fortas. A dozen years later, we encountered each other again, when Fortas returned to the court for his only Supreme Court argument following his resignation, and I was the advocate on the other side of a high profile case, which determined which political party would control the Puerto Rico legislature. By that time, Fortas had rebuilt his reputation. (Sadly, he died before learning that he had won the politically sensitive case.)
In response to the latest disclosures about Justice Thomas’s ethical evasions, he issued a statement lamely blaming his colleagues at the court for assuring him that he could treat any financial benefits from “friends” as “personal hospitality” that, under prevailing standards, need not be disclosed. Putting aside the question whether any reasonable judge would put a pattern of lengthy cruises in the Pacific aboard a luxury yacht in the same category as joining the neighbors for beer and pizza, it comes with ill-grace to fashion the blame for his grasping arrogance on his colleagues.
But taking him at his word, it would be time for Chief Justice John Roberts and one of Thomas’s close allies, perhaps Samuel Alito, to play the role that Warren and Black played in encouraging Fortas to do the decent thing, for the court and himself — step down gracefully. They could orchestrate a mutually beneficial resolution so that nothing in Thomas’s recent professional life “became him like the leaving it.”
Thomas owes it to the court and the country to retire.
His colleagues, having been drawn into the fray, are equally duty bound to open the exit for him.
Philip Allen Lacovara was deputy solicitor general of the United States for criminal and national security matters, counsel to the Watergate special prosecutor and president of the District of Columbia Bar.